I. Introduction

Who is this guide for?

This is a guidebook for litigators seeking to bring civil litigation against manufacturers, distributors, and dealers of firearms and ammunition that engage in wrongful conduct. It provides an overview of relevant law, with an eye toward successful strategies and techniques for holding reckless and irresponsible members of the gun industry accountable for their actions.

When someone is shot, whether in a criminal act, an unintentional shooting, or a suicide, they or their loved ones may have a viable lawsuit if there was wrongful conduct by the gun dealer, the gun’s manufacturer, or others. Of course, in cases of criminal shootings, the shooter themself can and must be held legally accountable. That said, the American legal system has long recognized that more than one person or party that has committed or contributed to a legal wrong can be held responsible in civil litigation for resulting injuries and harms. Holding members of the firearms industry accountable for their own misconduct can not only provide your client with some measures of justice, but it can also have a meaningful impact on the safety of your community and the nation by incentivizing the industry to reform its most reckless business practices. Cases against the gun industry can succeed, but they face challenges that are not present in lawsuits against most other industries. This manual will help you identify and overcome these obstacles—and win.

If you are suing a member of the gun industry, the odds are good that, at some point during your lawsuit, the defendant will try to have your case dismissed by arguing that it is barred by the federal Protection of Lawful Commerce in Arms Act (PLCAA). If this is your first case against a gun-industry defendant, it may seem like an insurmountable obstacle. But plaintiffs can and do win cases against gun industry defendants, and this guide will help you figure out the best arguments to make and what strategies to employ.

What is PLCAA?

PLCAA is a federal statute that was enacted in 2005 with the aim of protecting the gun industry from liability in certain types of civil suits. It provides the gun industry with special protections enjoyed by few other industries. However, it is a common misconception that PLCAA effectively shields the gun industry from all lawsuits. While PLCAA provides significant protection for gun companies, and for nearly two decades has chilled litigation and led to the dismissal of some meritorious cases against irresponsible actors, it does not provide absolute immunity. As discussed in detail below, numerous courts have allowed for liability against gun dealers, manufacturers, and other entities for their own wrongful conduct and rejected gun-industry arguments that PLCAA provides sweeping immunity.

What does PLCAA do?

PLCAA prohibits the bringing of what it calls a “qualified civil liability action” (QCLA).¹See 15 U.S.C. § 7902(a). PLCAA first provides a general definition of a QCLA—that is, certain civil actions against a member of the gun industry for harm resulting from the criminal or unlawful misuse of firearms or ammunition. PLCAA then sets out six exceptions to the general definition.²See 15 U.S.C. § 7903(5)(A) (defining QCLA and exceptions).

Once a defendant invokes PLCAA, courts generally conduct a two-step inquiry to determine whether PLCAA bars the lawsuit. They first ask whether the cause of action meets the general definition of a QCLA. Many (but not all) lawsuits against gun-industry defendants will fall within the definition, which courts have generally found to be quite broad. How to evaluate that question is explored in detail in Section III.

If a lawsuit meets the general definition of a QCLA, the second step is to ask whether any of PLCAA’s six exceptions apply. The most commonly invoked exceptions are the predicate exception (relating to violations of state or federal laws applicable to the sale or marketing of firearms), the negligence per se or negligent entrustment exception, and the product defect exception. These and other exceptions are each discussed in depth in Sections IV through VIII. PLCAA’s exceptions are broad enough to allow numerous claims involving irresponsible gun-industry conduct to proceed.

When does PLCAA come up in a case?

Typically, defendants raise PLCAA in a motion to dismiss at the pleading stage. While this is typical, it is not exclusive: some PLCAA issues can be fact-intensive and require resolution only at summary judgment or trial. But in the majority of cases, a defendant will argue that PLCAA requires dismissal at the outset of litigation.

What does this guide cover?

This guide provides lawyers with the tools they need to understand PLCAA and effectively litigate gun-industry liability cases that can overcome PLCAA. The topics covered include:

• A survey of gun industry accountability litigation, highlighting notable successes and ensuring that practitioners are aware of the full range of potential defendants and theories of liability that may be pursued.
• Analysis of PLCAA’s QCLA definition and related case law.
• Detailed analysis of PLCAA’s exceptions for suits alleging predicate violations of law, negligence per se or negligent entrustment, and product-defect theories, as well as the trio of lesser-used exceptions—including case law that will allow many types of cases to proceed despite a PLCAA challenge.

The guide concludes with a series of special topics that may be of relevance to you as you litigate a case against a gun-industry defendant. These special topic sections include:

• Basics of a gun sale. This special topic provides an overview of the process and paperwork for a gun sale between a licensed dealer and a retail purchaser, as well as a summary of the suspicious behaviors that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) trains dealers to recognize. This section may be of particular use to counsel preparing to engage in discovery against a gun-industry defendant.
• Removal to federal court. Some defendants feel the federal forum is more favorable and may seek to remove your case if you file in state court. However, many plaintiffs have succeeded in having their cases remanded back to state court. This section discusses the various grounds for removal in gun cases, as well as arguments for remand.
• State gun-industry protection laws. Many states have their own gun-industry immunity laws that can vary considerably from PLCAA. This section identifies a few common features of these state laws that you should look out for when determining whether they apply to your client’s claims—in particular whether they contain a fee-shifting provision.
• PLCAA’s legislative history. PLCAA has a robust, but mixed, legislative history. This section provides an overview of that history with a particular focus on portions indicating that PLCAA’s scope is intended to be narrow and to bar only a limited class of lawsuits.

We hope that this will provide you with the resources you need to fight for accountability and justice on behalf of your clients. If you have any questions or would like to consult with Everytown Law attorneys concerning gun violence prevention litigation generally or PLCAA specifically, please contact us at litigationadmin@everytown.org. To learn more about our work and our successes in holding bad actors in the gun industry accountable, visit our website at: https://everytownlaw.org/.

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